assessing capacity - university of utah school of … · presented: 04/05/01 assessing capacity...

Neuropsychology Division

University of Michigan Hospital and Health Center

© Bruno Giordani

Promoting Mobility and Preventing Falls

Presented: 04/05/01

ASSESSING CAPACITY

Dustin B. Hammers, PhD, ABPP-CN

Board Certified in Clinical Neuropsychology

Department of Neurology

Center for Alzheimer’s Care, Imaging, & Research

University of Utah

08/29/2016

Center for Alzheimer’s Care,Imaging and Research (CACIR)

Objectives

Realize determining capacity in older adults with

complex impairments can be difficult

Describe the Six Pillars of Capacity Assessment

Explain how capacity impacts Guardianship and

Power of Attorney decisions



© Bruno Giordani


Presented: 04/05/01

Challenging Task Upon Us

Balancing ethical and legal guidelines for respect

of individual’s autonomy with the additional charge

of protecting individuals from harm

Law deems adults are competent unless proven

otherwise, and burden of proof for incompetency is

high (Moberg & Kniele, 2006)

Capacity vs. Competency

Capacity

Status of individual defined by functional deficits

judged to be sufficiently great that the person currently

cannot meet the demands of a specific decision-making

situation, weighted in light of its potential consequences (Grisso and Applebaum, 1998)

Competency

A legal construct established and governed by the

courts



© Bruno Giordani


Presented: 04/05/01

Although courts ultimately determine competency,

opinions of medical and mental health practitioners

often elicited regarding person’s decision making or

functional abilities

Types of Capacities

Work

Drive

Parent

Make medical decisions

Provide informed consent

Care for one’s self or property

Designate a will or other legal contract



© Bruno Giordani


Presented: 04/05/01

Limitations to Capacity Decisions

Global vs. Specific deficits

Issues with only certain abilities (driving), or

incapable of making any self-decisions?

Permanent vs. Temporary deficits

Deficits based on dementia compared to delirium

and psychiatric functioning

Example of stroke speaks to importance of

addressing the temporal limits to incapacity

Limitations, cont…

Will environmental supports influence deficits?

Positive Influence: Support services allow patient

structure to stay in home

Negative Influence: Undue influence, exploitation, or

threat can directly affect the autonomy, functioning, and

well being of those with diminished capacity

Importance of ‘bad decisions’ and needs/values of

the patient



© Bruno Giordani


Presented: 04/05/01

Clinical Professionals with Possible

Expertise

Geriatricians, Geriatric Psychiatrists, or Geropsychologists

Neurologists

Neuropsychologists or Psychologists

Nurses

Occupational Therapists

Primary Care Physicians and Internists

Psychiatrists

Social workers

Historical Precedent for Assessing

Capacity

Requirement for mental competence arose in

Mid-17th century English courts as reaction

to defendants who stood mute instead of

entering a plea of guilt or innocence

In such cases, courts impaneled juries to decide whether the accused

was obstinately mute, or not possessing capacity to respond (ex

visitatione Dei [by visitation of God]).

Consequence of assessment:

Defendants found mute ex visitatione Dei were spared

“Obstinately mute” defendants were punished

Blackstone W: Commentaries on the Laws of England. Oxford:

Clarendon Press, 1765–1769

Slovenko R: Psychiatry and Law. New York: Little, Brown, 1974



© Bruno Giordani


Presented: 04/05/01

Fast Forward A Couple Hundred Years

1960s-1970s, “physical illness” or “physical

disability” was a sufficient disabling condition

Some state statues opened a very wide door by

including “advanced age” and the catch-all “or other

cause.”

Still Not Perfect Many Years Later…

Historically, decisional capacity determined by unreliable clinical interview

or general mental status evaluation (Markson, 1994; Marson, McInturff, Hawkins, Bartolucci,

& Harrell, 1997; Rutman & Silberfeld, 1992).

Characteristics shown to influence capacity judgment

provider’s personal values, experience, theoretical orientation, thoughts

on age (Clemens & Hayes, 1997)

gender of physician (Roter & Hall, 2004)

patient-physician racial concordance (Cooper et al., 2003)

verbal and nonverbal behaviors (Beck, Daughtridge, & Sloane, 2002; Roter, Frankel,

Hall, & Sluyter, 2006)

respect for or liking of patients (Beach, Roter, Wang, Duggan, Cooper, 2006; Hall,

Horgan, Stein, & Roter, 2002)



© Bruno Giordani


Presented: 04/05/01

Inconsistency of Methods Used to

Determine Capacity

Clinicians focus on different cognitive abilities in predicting

capacity (Marson, Hawkins, McInturff, & Harrell, 1997).

Low agreement between physicians with different specialty

training who provided ratings of consent capacity in older

adults with AD (Marson et al., 1997)

Agreement improved when physicians were trained to

evaluate specific legal standards (Marson et al., 2000).

Standardized cognitive testing improves reliability, though

generalizability may still be in doubt

Does impaired memory actually lead to inability to complete a will?

Six Pillars of Capacity

2006/2008 - American Bar Association Commission on

Law and Aging – American Psychological Association

Judicial Determination of Capacity of Older Adults in

Guardianship Proceedings

Assessment of Older Adults with Diminished Capacity

Not prescriptive or definitive, but a tool considered a

framework that judges and psychologists may find

useful and effective in capacity determination



© Bruno Giordani


Presented: 04/05/01

Six Pillars

1. Medical Condition

2. Cognition

3. Everyday Functioning

4. Values and Preferences

5. Risk and Level of Supervision

6. Means to Enhance Capacity

1. Medical Condition Producing

Functional Disability

What is the medical cause of the individual’s alleged

incapacities and will it improve, stay the same, or get

worse?

Today, judges require information on the specific

disorder causing diminished capacity.



© Bruno Giordani


Presented: 04/05/01

Context of Capacity Evaluations

Moberg &

Gibney,

2005

(n=62)

Causes of cognitive impairment in older

adults

Dementia

Alzheimer’s disease

Vascular disease

Lewy Body disease

Parkinson’s disease

Alcohol abuse

Undiagnosed TBI and/or stroke

Combinations of the above

Delirium



© Bruno Giordani


Presented: 04/05/01

Confusion

Common Psychosocial Causes Transfer trauma (a recent move that has the individual disoriented)

Recent death of a spouse or loved one

Recent stressful event

Depression and anxiety

Insomnia

Common Miscommunication Problems Difficulty understanding English

Decisions impacted by religious, cultural, or ethnic background

Low educational or reading level; illiterate

Difficulty hearing or seeing

Common Medication Problems

Anti-cholinergics, anti-depressants, anti-psychotics, movement disorder drugs, anxiolytics (benzodiazepines, barbiturates), anti-histamines, opioids, steroids

Six Pillars


2. Cognition







© Bruno Giordani


Presented: 04/05/01

2. Cognitive Functioning Component

In what areas is the individual’s decision-making and thinking impaired and to what extent?

An incapacitated person as defined by Uniform Guardianship and Protective Proceedings Act of 1997 (UGPPA)

is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.

Consider areas of strength and weakness and the severity of impairment.

Includes alertness or arousal, as well as memory, reasoning, language, visual-spatial ability, and insight.

How to Assess Cognitive Functioning

In House Options/Screens

Montreal Cognitive Assessment (MOCA)

Mini-Mental Status Exam (MMSE)

Mini-Cog

Saint Louis University Mental Status Exam (SLUMS)

Refer for Neuropsychological Evaluation



© Bruno Giordani


Presented: 04/05/01

Six Pillars


2. Cognition





3. Everyday Functioning Component

What can the individual do and not do in terms of everyday activities? Does the individual have the insight and willingness to use assistance or adaptations in problem areas?

Inadequate Standard: “Incapable of taking care of herself”

vague standard that invites judgments of incapacity based upon the court’s opinion of the reasonableness of one’s behavior

Appropriate standard: operational definition related to essential needs, such as “inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety”



© Bruno Giordani


Presented: 04/05/01

Everyday Functioning

Care for Self

Financial Management

Includes resisting exploitation, coercion, and undue influence

Civil or Legal

Retain legal counsel, voting

Make decisions about legal documents

Medical Decision Making

Choosing appropriate treatment, facility, and caregivers, contact for help if ill or emergency

Make advance directive, manage medications

Home and Community Life

Maintain safe/clean shelter, able to be left alone, use transportation, maintain personal relationships, use phone and mail

Avoid environmental dangers, such as the stove and poisons, and obtain appropriate emergency help

Everyday Functioning and Functional

Assessment

How do clinicians define everyday functioning?

Activities of daily living (ADL; grooming, toileting,

eating)

Instrumental activities of daily living (IADL; manage

finances, health, and functioning in the home and

community)

How is functioning assessed by clinicians?

Informal (observation or asking family, ADL/IADL rating

scales) versus formal testing (occupational therapy)



© Bruno Giordani


Presented: 04/05/01

ADL/IADL Rating Scales

Functional Assessment Questionnaire (FAQ)

Adult Functional Adaptive Behavior Scale (AFABS)

Barthel Index

Direct Assessment of Functional Status (DAFS)

Functional Independence Measure (FIM)

Index of ADL (K-ADL)

Kenny Self Care Evaluation

Multidimensional Functional Assessment Questionnaire

(MFAQ)

Philadelphia Geriatric Center Multilevel Assessment

Inventory (MAI)

Physical Self-Maintenance Scale

K-ADL



© Bruno Giordani


Presented: 04/05/01

FAQ

Six Pillars


2. Cognition







© Bruno Giordani


Presented: 04/05/01

4. Consistency of Choices of Values,

Preferences, and Patterns

Knowledge of values is essential in the guardianship plan.

Key areas to consider include matters such as:

Does the individual want a guardian? Who should it be?

Does the individual prefer that decisions be made alone or with others?

What makes life good or meaningful for an individual?

What over-arching concerns drive decisions?

What are the individual’s strong likes, dislikes, hopes, and fears? Religious beliefs or cultural traditions?

Choices, Values, Preferences

Are the person’s choices consistent with long-held

patterns or values and preferences?

Do not mistake eccentricity for diminished capacity

Long-held choices must be respected, yet weighed in

view of new medical information that could increase

risk, such as a diagnosis of dementia



© Bruno Giordani


Presented: 04/05/01

Six Pillars


2. Cognition





5. Risk of Harm and Level of

Supervision Needed

What is the level of supervision needed? How severe

is the risk of harm to the individual?

Must consider condition’s risk in the context of

environmental supports and demands

Most state statutes require no other feasible option than

guardianship, or that the imposition of a guardianship

is the least restrictive alternative for addressing the

proven substantial risk of harm.

The level of supervision to mitigate risk should match

the risk of harm to the individual.



© Bruno Giordani


Presented: 04/05/01

Capacity Assessment and

Guardianship

Guardian

A person, agency, or institution appointed by the court to make personal decisions for another. Authority is not absolute.

Guardian under court supervision and is required to file report each year to court of receipts, payments, other financial transactions made that year

Guardian of the person (Guardian) vs. Guardian of the estate (Conservator)

Full Guardianship (Plenary) vs. Limited Guardianship

Court assigns either all duties to another, or only those powers incapacitated or partially incapacitated individual is incapable of exercising

Results of capacity assessment directly influencing

guardianship decision

Minimal or no diminished capacity → less restrictive

alternatives, dismiss petition.

Severely diminished capacities on all fronts → plenary

guardianship.

Mixed strengths and weaknesses → limited

guardianship.



© Bruno Giordani


Presented: 04/05/01

Capacity Assessment and Durable

Power of Attorney

Durable power of attorney (DPA)

Effective alternative to guardianship, allowing an individual to plan for the control of his or her financial affairs in the event of incapacity.

Enables delegated authority to act for the individual even after person loses capacity to make decisions, and is effective until revoked by the individual or until their death.

In order for a person to establish a DPA, mental capacity necessary to understand and sign the document

Typically capacity gauged by attorney representing the individual, based on State statutes for capacity for making any contract

Determination of incapacity by a health specialist prior to completing DPA would exclude the individual from establishing a DPA, consequently guardianship is required

Guardianship vs. Durable Power of

Attorney?

85 year old patient with Alzheimer’s disease

Struggling to handle bills, cash checks, make decisions

Capacity at time of signing influences eligibility

Sound capacity at time of signing → DPA

Incapacity at time of signing → Guardianship



© Bruno Giordani


Presented: 04/05/01

Six Pillars


2. Cognition






The mere existence of a physical disability should

not be a ground for guardianship

since most physical disabilities can be accommodated

with appropriate medical, functional, and technological

assistance directed by the individual.



© Bruno Giordani


Presented: 04/05/01

What treatments might enhance the individual’s functioning?

Key interventions are:

Education, training, or rehabilitation

Mental health treatment

Occupational, physical, or other therapy

Home or social services

Medical treatment, operation, or procedure

Assistive devices or accommodation

If Assistance with Finances Needed

Bill paying services

Utility company third party notification

Shared bank accounts (with family member)

Durable Power of Attorney for finances

Trusts for management of property

Representative Payee

Adult protective services



© Bruno Giordani


Presented: 04/05/01

Assistance for Unsafe Living

Environment

Senior shared housing programs

Adult foster care

Community residential care

Assisted living

Nursing home

Continuing Care Retirement Communities (CCRCs)

Assistance with Daily Activities

Care management

Home health services

Home care services

Adult day care services

Respite care programs

Meals on wheels



© Bruno Giordani


Presented: 04/05/01

Assistance with Daily Activities, cont…

Transportation services

Food and prescription drug deliveries

Medication reminder systems

Telephone reassurance programs

Emergency call system (“lifeline”)

Home visitors and pets on wheels

Daily checks on the person by mail carriers

Assistance with Medical Treatment if no

Consent Possible

Health Care Advance Directive

Surrogate decision making by an authorized legal

representative, a relative, or a close friend



© Bruno Giordani


Presented: 04/05/01

Proposed Standards

Ideal capacity evaluation would include:

Medical Review or Diagnosis

Detailed structured interview with patient and informants

Neuropsychological Testing

Functional Ability Assessment

On-road driving evaluation, OT for cooking or financial management

Review of Legal Standards

Identification adaptations and environmental supports to complete tasks

Moberg & Kniele (2006)

Examples

Financial affairs

Decision making capacity via interview

Examination of executive functioning and calculation skills

Functional measure of mathematical and everyday financial skills

Driving

History of driving issues via interview

Examination of attention, visual spatial skills, reaction time, motor skills

On-road driving evaluation



© Bruno Giordani


Presented: 04/05/01

The 5 W’s of a Capacity Assessment

What:

What types of decisional or functional processes are in question?

What data are needed?

Am I an appropriately qualified evaluator?

Who:

Who is the client?

What is the older adult’s background?

Who is requesting the evaluation?

Who are the interested parties?

Who sees the report?

Is the court or litigants involved?

When:

How urgent is the request?

Is there a court date?

What is the time frame of interest?

Is the individual medically stable?

Where:

In what context / setting does the evaluation take place?

Why:

Why now?

What is the history of the case?

Will a capacity evaluation resolve the problem?

APA, 2008

THANK YOU!

QUESTIONS?

[email protected]

www.utahmemory.org



© Bruno Giordani


Presented: 04/05/01

Medications Leading to Confusion

Temporary and Reversible Causes of

Confusion

Causes of Delirium

Drugs > 6 meds or > 3 new meds or use of drugs

that cause confusion

Electrolytes Low sodium, blood sugar, calcium, etc

Lack of Drugs, Water, Food Pain, malnutrition, dehydration

Infection or Intoxification Sepsis, urinary track infection, pneumonia;

alcohol, metals, solvent

Reduced Sensory Input Impaired vision, hearing, nerve conduction

Intracranial Causes Subdural hematoma, meningitis, seizure, brain

tumor

Urinary Retention/Fecal Impaction Drugs, constipation

Myocardial Heart Attack, heart failure, arrhythmia

Other Causes of Confusion

Liver or kidney disease Hepatitis, diabetes, renal failure

Vitamin deficiency Folate, nicotinic acid, thiamine, vitamin B12

Post surgical state Anesthesia, pain

assessing capacity - university of utah school of … · presented: 04/05/01 assessing capacity...

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